CASE BRIEF—On Aug. 5 the Ninth Circuit Court of Appeals affirmed the reinstatement of the Roadless Area Conservation Rule (Roadless Rule), the short-lived, much-litigated 2001 U.S. Forest Service national management plan related to the protection of 58.5 million acres of roadless areas in the national forest system. With a live legal challenge in the Tenth Circuit, a state-specific rule pending in Colorado and a year-long freeze on roadless area decisions by the Obama administration, the issue of nationwide protection for roadless areas remains far from resolved.
Legal Challenges to the Roadless Rule
The Roadless Rule—promulgated by the Forest Service in the last days of the Clinton administration—limits most road construction and timber harvesting in inventoried roadless areas in 39 states. According to the Natural Resource Defense Council, the rule, which drew more than 4 million public comments during its drafting, has resulted in only seven miles of roads built and 535 acres logged since 2001. Recreational enthusiasts, the timber industry and their allies have opposed the rule’s stringent restrictions since its inception.
The rule was first challenged in the U.S. District Court of Idaho, two days before its implementation in 2001. By the time the Ninth Circuit overturned the district court’s nationwide injunction the following year and reinstated the rule, the Forest Service had already begun revising its stance on national management. When a second suit—filed in a Wyoming federal district court for alleged violations of NEPA (National Environmental Policy Act) and ESA (Endangered Species Act)—again enjoined the Roadless Rule in 2003, the Forest Service did not appeal to the Tenth Circuit. Instead, it repealed the Roadless Rule and adopted the State Petitions Rule in 2005; the new policy permitted states to formulate individualized local forest management plans and allow road construction and development in roadless areas. The regulatory change forced the Tenth Circuit to dismiss the appeal filed by environmentalists for lack of jurisdiction and vacate the Wyoming district court’s judgment.
California and Wyoming Courts Battle for Opposing Rules
The new State Petitions Rule was immediately challenged on procedural grounds by California, Oregon, New Mexico and Washington, and numerous environmental organizations in the U.S. District Court for the Northern District of California. In September 2006 the district court granted the plaintiffs summary judgment, holding that the Forest Service violated NEPA and ESA when it effectively repealed the Roadless Rule and failed to comply with statutory requirements. The court set aside the State Petitions Rule and reinstated the Roadless Rule, albeit momentarily, in all national forests, with the exception of the Tongass National Forest.
Two years later, the newly reinstated Roadless Rule was once again struck down in a Wyoming district court. In his August 2008 opinion, Judge Brimmer ruled that the Forest Service’s implementation of the Roadless Rule violated NEPA and the Wilderness Act and issued a nationwide injunction—preventing the Forest Service from applying the Roadless Rule to any national forest roadless areas—that is currently being appealed in the Tenth Circuit.
In the midst of these conflicting district court opinions, Idaho and Colorado opted out of the legal debacle by petitioning the Forest Service, under the Administrative Procedures Act, to adopt state-specific management rules for each state. The Forest Service obliged and adopted in late 2008 an Idaho-specific plan that now regulates more than 9 million acres of Idaho’s roadless land; Colorado’s own state-specific plan is currently in the works. Under these state-specific plans, all national forest lands in these states are exempt from Roadless Rule restrictions; land in Alaska’s Tongass National Forest is also specifically exempted from Roadless Rule restrictions under a 2003 amendment passed by the Bush Administration.
The conflicting injunctions placed the Forest Service in an impossible position; it would violate at least one injunction regardless of whether it implemented the Roadless Rule or not. In late 2008, at the request of the federal government, Judge LaPorte of the California district court limited her holding to states within the Ninth Circuit and New Mexico. But when Judge Brimmer refused to stay his nationwide injunction six months later, the conflict remained. Therefore, the Ninth Circuit’s most recent reaffirmation of the Roadless Rule applies nationwide to all national forest lands, except in Idaho and the Tongass National Forest, and impacts 40 million of the 58.5 million acres of roadless areas originally governed by the rule.
Ninth Circuit’s Latest Analysis
In its review of two consolidated district court actions, the Ninth Circuit concluded that the U.S. Department of Agriculture (USDA) and Forest Service’s characterization of the State Petitions Rule—“as administrative only and without direct, indirect or cumulative effects on the environment”—was unreasonable. The Ninth Circuit also disagreed with the USDA’s reliance on a Forest Service Handbook provision that excludes “rules, regulations or policies to establish Service-wide administrative procedures, program processes or instructions” from environmental assessment or impact statements: “Given the USDA’s repeated acknowledgement of its intent to repeal—or “replace” —the Roadless Rule, that the State Petitions Rule accomplished little else, supports our conclusion that a primary purpose of the State Petition Rule was taking substantive environmental protections off the books.” The replacement of the Roadless Rule with lesser protections therefore triggered the threshold for environmental analysis under NEPA.
The court reached a similar conclusion regarding the Forest Service’s determination that no ESA consultation was required before it repealed the Roadless Rule. Because the State Petitions Rule removed protections for federally listed species and their critical habitats in roadless areas previously identified by the Forest Service as “biological strongholds for populations of threatened and endangered species,” the Ninth Circuit found its failure to meet consultation requirements under section seven of the ESA arbitrary and capricious.
The Ninth Circuit concluded that while the Forest Service is free to manage roadless areas as it sees fit, it must first comply with NEPA and ESA requirements. It further ruled that the district court did not abuse its discretion in 2006, by reinstating the Roadless Rule, pending Forest Service compliance with these statutes.
Implications for the Roadless Rule
While the Ninth Circuit’s latest ruling momentarily defeats the State Petitions Rule, the Obama administration must still take steps to ensure the Roadless Rule is permanently applied nationwide. In mid-August, the administration took its first proactive step toward upholding the Roadless Rule by preserving its right to appeal the 2008 Wyoming federal district court ruling, which issued a nationwide injunction against the rule. This action preceded an official announcement two days later that detailed the Forest Service’s new direction in land management, specifically conservation and restoration efforts that “make forests more resilient to climate-induced stresses and will ensure that our forests continue to supply abundant, clean water.”
For the time being, the Obama administration has transferred all “authority to approve or disapprove road construction or reconstruction and the cutting, sale, or removal of timber in” inventoried roadless areas—including the Tongass National Forest but excluding roadless land in Idaho—to U.S. Agriculture Secretary Tom Vilsack.
Should the Department of Justice decide to appeal the Wyoming district court’s injunction before the Tenth Circuit, its appeal would join one already filed by environmental groups. If the Tenth Circuit upholds the court’s injunction and prolongs the direct conflict with the recent Ninth Circuit ruling, the issue is likely to make its way to the Supreme Court for resolution.
[Editor's Note: This piece was updated at 10:30 a.m.]
